Gerald A. Lechliter v. Del. Department of Natural Resources & Environmental Control ( 2015 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
GERALD A. LECHLITER, )
)
Plaintiff, )
)
v. ) C.A. No. 7939-VCG
)
DELAWARE DEPARTMENT OF )
NATURAL RESOURCES & )
ENVIRONMENTAL CONTROL, )
COLLIN O’MARA, DAVID SMALL, )
CHARLES SALKIN, CITY OF LEWES, )
UNIVERSITY OF DELAWARE, )
PATRICK T. HARKER, SCOTT R. )
DOUGLASS, NANCY M. TARGETT, )
BLUE HEN WIND, INC., FIRST )
STATE MARINE WIND, LLC, and )
GAMESA TECHNOLOGY )
CORPORATION, INC., )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: September 4, 2015
Date Decided: December 31, 2015
Gerald A. Lechliter, Lewes, DE, Pro Se Plaintiff.
Ralph K. Durstein, III, Devera B. Scott, and William J. Kassab, of DEPARTMENT
OF JUSTICE, Wilmington, DE, Attorneys for Defendants Delaware Department of
Natural Resources & Environmental Control, Collin O’Mara, David Small, and
Charles Salkin.
Daniel L. McKenty and Michael W. Mitchell, of HECKLER & FRABIZZIO,
Wilmington, DE, Attorneys for Defendant City of Lewes.
William E. Manning, Richard A. Forsten, and Allison J. McCowan, of SAUL
EWING LLP, Wilmington, DE, Attorneys for Defendants City of Lewes, University
of Delaware, Patrick T. Harker, Scott R. Douglass, Nancy M. Targett, Blue Hen
Wind, Inc., First State Marine Wind, LLC, and Gamesa Technology Corporation,
Inc.
GLASSCOCK, Vice Chancellor
The Plaintiff, Col. Gerald A. Lechliter, lives on a cul-de-sac in Lewes. His
property abuts a large parcel of land (the “Lewes Property”) set aside as, but never
used for, an industrial park. This large parcel was owned by the University of
Delaware, and is adjacent to its Lewes campus. It is generally south of Canary
Creek, and adjacent to the Great Marsh which lies north of Lewes. In 2002, the
University sold the Lewes Property to the Delaware Department of Natural
Resources and Environmental Control (“DNREC”), to be used as open space. The
University reserved an easement over a portion of the Lewes Property near the Great
Marsh, which gave it the right to enter and deposit dredge spoils. Eventually, the
University and DNREC modified this easement, to allow the University and an
entity it created to build a large windmill—an electricity-generating wind turbine—
in the easement, with which the University could do research on generation of
“clean” energy and supply itself and others with electrical power. The turbine was
constructed in the easement, approximately one-half mile from Lechliter’s home.
According to Lechliter, the operation of the wind turbine, through its noise
and its stroboscopic emanations, disturbs his quiet enjoyment of his property. He
brought this action for nuisance and related torts, pro se. In a manner reminiscent
of his similar crusade against another use being made of a different portion of the
old industrial park—a public dog park1—Lechliter has raised numerous challenges
1
See Lechliter v. DNREC, 2015 WL 7720277 (Del. Ch. Nov. 30, 2015).
1
to the manner in which the wind turbine was approved, constructed, and operated,
and has thrown into his complaint acts of local government unrelated to his claims
concerning the turbine (for instance, his dissatisfaction with the way DNREC
chooses those allowed to hunt on the Lewes Property). He has brought this action
against the University, DNREC, the City, and others, seeking declaratory judgments,
injunctive relief, and damages. Before me are the Defendants’ Motions for
Summary Judgment. For the following reasons, I reserve decision with respect to
certain of the tort claims; otherwise the Motions are granted.
I. BACKGROUND FACTS
A. The Parties
Lechliter is a citizen of Lewes, Delaware.2
The State Defendants are the Delaware Department of Natural Recourses and
Environmental Control (“DNREC”); Collin O’Mara, Secretary of DNREC; David
Small, Deputy Secretary of DNREC; and Charles Salkin, Director of the Division of
Parks and Recreation within DNREC (together, the “DNREC Defendants”).3
The University of Delaware Defendants are the University of Delaware
(“UD” or the “University”); Patrick T. Harker, UD President; Scott R. Douglass, UD
Executive Vice-President; and Nancy M. Targett, UD Dean (together, the “UD
2
Compl. ¶ 29.
3
Id. at ¶ 30; Def. DNREC’s Opening Br. 1.
2
Defendants”).4
The Defendants also include the City of Lewes (the “City”); Blue Hen Wind,
Inc. (“Blue Hen”); Gamesa Technology Corporation, Inc. (“Gamesa”); and First
State Marine Wind, LLC (“First State”) (together with the UD Defendants, the
“City/UD Defendants”).
B. Overview
1. DNREC Purchases the Lewes Property from UD
In 2002, using State funding through Delaware’s Open Space Program,
DNREC purchased from the University the Lewes Property, 260.94 acres of land
adjacent to the University’s Lewes campus.5 In conjunction with the purchase—and
included as consideration6—DNREC granted the University two easements, one of
which was an easement (the “Original Easement”) that allowed UD to continue using
approximately 23 acres (the “Encumbered Land”) to deposit dredge spoils, the
historic use of that property.7
2. Construction of the Turbine on the Encumbered Land
The University first began contemplating the construction of a wind turbine
in 2007 when it met with the City’s Board of Public Works (the “City BPW”) to
4
Compl. ¶ 30; Defs. City/UD’s Opening Br. 2 n.2.
5
Compl. ¶ 33; Def. DNREC’s Opening Br., Ex. A (Deed).
6
Compl., Ex. 9 (Original Easement), at 49.
7
Id. at ¶ 53; id., Ex. 9 (Original Easement), at 50.
3
discuss the possibility of constructing a wind turbine in Lewes.8 In 2008, UD started
investigating a project to construct a wind turbine on its Lewes campus to conduct
research and to provide carbon-emission-free electricity to the campus.9 As part of
its preliminary investigation, the University hired Sustainable Energy
Developments, Inc. (“SED”) to study the feasibility of the project (the “Feasibility
Study”).10
During 2009, the University moved beyond the planning phase and began
taking steps toward the construction of a wind turbine. On July 24, 2009, UD and
Gamesa11 entered into a memorandum of understanding (“MOU”) whereby the
parties would jointly construct, own, and operate a wind turbine on UD’s Lewes
Campus.12 Later that year, on October 19, 2009, the University and DNREC
finalized an MOU (the “DNREC-MOU”) that committed DNREC to provide UD
the right to access and control a portion of the Lewes Property adjacent to the
University for the purpose of constructing, owning, operating and maintaining a
wind turbine.13 The DNREC-MOU contemplated that DNREC would eventually
convey back to UD the entire Lewes Property, or at least a parcel large enough to
8
Id. at ¶ 34.
9
Id. at ¶ 35.
10
Id. at ¶ 36.
11
The parties did not provide background facts about Gamesa. I note that, according to their
website, Gamesa is a global company that constructs, operates, and maintains wind turbines. See
GAMESA, http://www.GamesaCorp.com/en/ (last visited Dec. 23, 2015).
12
Compl. ¶ 39; id., Ex. 6 (DNREC-MOU), at 25.
13
Id. at ¶ 41; id., Ex. 6 (DNREC-MOU).
4
build the wind turbine, in exchange for either cash or another parcel owned by the
University.14
On the same day, UD and Gamesa finalized an agreement to build a 410-foot
tall, utility-scale 2 megawatt Gamesa Turbine (the “Turbine”) on the University’s
Lewes Campus.15 Pursuant to the agreement, UD formed Blue Hen, which together
with Gamesa formed First State, a privately held LLC, to construct and operate the
Turbine.16
A few months later, on January 11, 2010, the Lewes City Council (“City
Council”) held a public meeting, the agenda for which included the “presentation
and consideration” of a memorandum of agreement with the University (the “City-
MOA”).17 During the meeting, City Council voted to initiate an executive session—
that is, a session held in private—in which the agenda indicated that topics other
than the City-MOA would be discussed.18 However, when City Council returned to
open session, it approved the City-MOA, which included “modifications as
discussed in [e]xecutive [s]ession,” thus indicating—according to the Plaintiff—that
14
Id. at ¶ 41; id., Ex. 6 (DNREC-MOU), at 27.
15
Id. at ¶ 43. According to the City/UD Defendants, the Turbine’s supporting structure is 256 feet
high, and the Turbine consists of three blades, which are each 144 feet in length. Defs. City/UD’s
Opening Br. 3. Using these measurements, the maximum height of the complete structure is 400
feet—that is, 10 feet less than the Plaintiff alleges. Id. The difference is immaterial for purposes
of this Memorandum Opinion.
16
Compl. ¶ 44; id., Ex. 5 (Incorporation Documents).
17
Id. at ¶ 46; id., Ex. 8 (Agenda & Minutes for January 2010 Meeting), at 42.
18
Id. at ¶ 47; id., Ex. 8 (Agenda & Minutes for January 2010 Meeting), at 47.
5
the City-MOA was improperly discussed in private.19
Shortly thereafter, on February 2, 2010, DNREC, recognizing that the land
had not yet been transferred in accordance with the DNREC-MOU, amended the
Original Easement (as amended, the “Amended Easement”) to allow the University
to access the Encumbered Land to begin building the Turbine.20 The Amended
Easement granted the University the right to use the Encumbered Land for “any
lawful purposes,” but prohibited UD from subleasing the land or using it for
“commercial uses.”21
The next day, on February 3, 2010, DNREC Deputy Secretary David Small
sent a letter to the City Solicitor stating that DNREC had approved the construction
of the Turbine.22 Weeks later, on February 16, 2010, representatives of the
University and the City finalized the City-MOA, authorizing the construction of the
Turbine.23 Finally, on February 24, 2010, the University paid a building permit fee
of $20,283, which was calculated based on 1% of the construction costs of the tower,
19
Id. at ¶¶ 47–49; id., Ex. 8 (Agenda & Minutes for January 2010 Meeting), at 48.
20
Id. at ¶ 57. The Plaintiff alleges that an e-mail reveals that the Amended Easement is
approximately 1.4 acres larger than the Original Easement. Id. at ¶ 88. The recorded document
memorializing the Amended Easement does not purport to burden additional land, however. See
id., Ex. 10 (Amended Easement).
21
Id. at ¶ 59; id., Ex. 10 (Amended Easement), at 56. However, I note that the Amended Easement
allows the University to “enter into license agreements for activities on the [Encumbered Land]
with a limited liability company . . . or other entity of which the University is a member . . . where
those activities are within the mission of the University, as determined by the University.” Id., Ex.
10 (Amended Easement), at 56.
22
Id. at ¶ 69; id., Ex. 20 (Letter from Small).
23
Id. at ¶ 72; id., Ex. 21 (City-MOA).
6
excluding the costs of the turbine mechanism itself.24 The City issued the building
permit (the “Building Permit”) on the same day.
In addition to its negotiations with the City and State, the University also
applied to the United States Department of Energy (“USDOE”) for federal grants,
pursuant to the National Environmental Policy Act (“NEPA”), to assist in the
construction and operation of the Turbine. On April 1, 2010, the USDOE informed
the University that an environmental assessment (“EA”) would be required to
receive federal funds under NEPA.25 According to its final EA, the USDOE
determined a “Finding of No Significant Impact,” and concluded that assisting the
construction of the Turbine “would not constitute a major Federal Action
significantly affecting the quality of the human environment.”26
Construction of the Turbine commenced in March 2010 and the Turbine was
operational in June 2010.
24
Id. at ¶ 189–90. According to the Plaintiff, and consistent with the building permit application,
the application was submitted approximately two months earlier, on December 17, 2009, by SED
on behalf of the University. Id. at ¶ 183; id., Ex. 7 (SED Letter). The building permit fee, however,
was not paid until February 24, 2010. Id. at ¶ 189.
25
See id., Ex. 57 (USDOE Letter).
26
See id., Ex. 58 (Final EA). The Plaintiff’s answering brief includes allegations that UD provided
inaccurate information to the USDOE when it conducted its EA. See Pl.’s Answering Br. 28–32.
The Plaintiff requests that the Court
take judicial notice of the facts related to the federal grants because these facts
clearly demonstrate the pattern of misinformation DNREC, and the University with
political pressure, used to obtain a favorable [EA]. Id. at 58.
However, the Plaintiff did not include in his Complaint any claims concerning DNREC’s
involvement with the USDOE. To the extent the Plaintiff attempts to use these facts to establish
a new cause of action against the Defendants in his answering brief in opposition to the Motions
to Dismiss and for Summary Judgment, such a claim is untimely.
7
3. Post-Construction Events
On July 1, 2010, the Delaware Governor signed the 2011 Bond Bill, in which
the General Assembly included in the bill’s “epilogue language” a provision that
authorized DNREC to sell back a portion of the Lewes Property to the University.27
In September 2010, the Plaintiff and two other citizens met with DNREC
Secretary O’Mara and inquired as to whether DNREC had consulted the Open Space
Council (the “OSC”), a body formed by statute to advise DNREC on land
preservation issues, in regards to the DNREC-MOU or the Amended Easement.28
O’Mara confirmed that DNREC had not.29
On November 30, 2011, the City BPW entered into an agreement with First
State to purchase excess electricity generated by the Turbine.30 Since operation of
the Turbine commenced, First State has sold electricity to the University to power
its Lewes campus and has sold the excess electricity to the City BPW.31
Finally, in anticipation that UD and DNREC would soon enter into an
27
Compl. ¶ 84. Section 87 of the 2011 Bond Bill, titled “University of Delaware – Lewes Land,”
provides:
The University of Delaware desires to acquire portions of land previously acquired
from the University by [DNREC] which are located adjacent to the Sharpe [sic]
Campus in Lewes. [DNREC] has determined that some of this land is now surplus
to the Department’s needs. In accordance with 30 Del. C. § 5423(c)(2), the General
Assembly authorizes the Secretary of [DNREC] to negotiate a transfer of such land
to the University in keeping with the requirements of this section. Id., Ex. 30 (2011
Bond Bill).
28
Id. at ¶ 90.
29
Id.
30
Id., Ex. 70 (Memorandum of Understanding), at 425–27.
31
Id. at ¶ 65.
8
agreement to transfer the Encumbered Land, the General Assembly again adopted
“epilogue language” in the 2012 Bond Bill that authorized DNREC to transfer the
parcel to UD; the language was nearly identical to that in the 2011 Bond Bill, except
that it mentioned the operation of the Turbine and the use of the land for research
purposes.32 To date, DNREC and UD have not entered into an agreement to transfer
or exchange the Encumbered Land.
4. The Turbine’s Effect on the Plaintiff
The Turbine is located approximately one-half mile from the Plaintiff’s
residence. According to the Plaintiff, since the construction of the Turbine, many
citizens living in close proximity have complained about its negative effects,
including the level of noise it generates.33 On December 22, 2010, the Plaintiff
emailed Mayor Ford and the Lewes City Manager to inform them of the Turbine’s
alleged adverse effects; to date, the Plaintiff has yet to receive a response.34
Concerns of the type expressed by the Plaintiff have not been completely
ignored, however. The University hired Tech Environmental, Inc. to perform two
acoustical studies to examine the acoustic effects of the Turbine: one in 2009, before
the Turbine’s construction; and another in 2011, six months after the Turbine was
32
Def. DNREC’s Opening Br., Ex. B (2012 Bond Bill) (“The land is limited to the area on which
the University is conducting research associated with the operation of a wind turbine . . . .”).
33
Compl. ¶ 131.
34
Id., Ex. 47 (Email); id. at ¶ 137.
9
operational.35 Despite the Plaintiff’s allegations regarding noise, the Defendants
allege the Turbine’s noise level is compliant with all applicable regulations.36 In
addition, the University hired SED to study the Turbine’s stroboscopic “flicker
effect,” a phenomenon that occurs when turbine blades momentarily, but repeatedly,
cast a shadow on the surrounding area when the blades pass in front of the sun.37
The study concluded that the Turbine would not have an adverse flicker effect on
the surrounding area.38 At Oral Argument on the instant Motions, the Plaintiff
alleged that the he was suffering physical injury and property damage from the very-
low-frequency sound emitted by the Turbine, which the University’s studies did not
address.39
5. The Connector Road Near the Turbine
In 2006, DNREC received $2.2 million from the Delaware Department of
Transportation to construct a road connecting New Road to Pilottown Road in Lewes
(the “Connector Road”).40 About four years later, after the consideration of various
proposed locations for the Turbine, it was built less than 600 feet from the planned—
and afterwards constructed—Connector Road, which, according to the Plaintiff, is
35
Aff. of Allison J. McCowan, Esq. in Supp. of Def’s Motion for Summ. J. (“Aff. of Allison
McCowan”), Exs. C (Acoustic Study) and D (Sound Compliance Study).
36
See Defs. City/UD’s Opening Br. 1.
37
See Aff. of Allison McCowan, Ex. B (Shadow Flicker Analysis).
38
See id.
39
Oral Arg. Tr. 58–60 (Unofficial Transcript). I note that oral argument on the instant Motions
was held on September 4, 2015, but none of the parties requested an official copy of the transcript.
40
Compl., Ex. 6 (DNREC-MOU), at 4.
10
inadequate according to DNREC’s own safety specifications.41
II. PROCEDURAL HISTORY
The Plaintiff filed his Verified Complaint on October 11, 2012. The
Complaint alleged seven counts against the Defendants: Count I alleges that DNREC
violated numerous statutes to illegally build the Turbine; Count II alleges that the
City violated statutes and zoning ordinances to illegally issue the Building Permit;
Counts III and IV allege violations of the Delaware Freedom of Information Act
(“FOIA”) against DNREC and the City, respectively; Count V alleges that DNREC
allows selected individuals to hunt illegally; Count VI alleges that the Defendants
committed nine torts in the construction and operation of the Turbine; and Count VII
alleges that DNREC and UD acted with gross and wanton negligence by approving
UD’s realignment of the Connector Road. In addition, the Plaintiff alleges that
DNREC conspired with UD, Gamesa, Blue Hen, and First State to perform the
wrongs alleged in Count I; similarly, the Plaintiff alleges that the City conspired with
the UD Defendants to perform the wrongs alleged in Count II.
In relief, the Plaintiff seeks numerous declaratory judgments and various
forms of injunctive relief, including the removal of the Turbine, as well as damages.
On June 24, 2013, I granted the parties’ Stipulation to Stay the Case pending
the resolution of a related federal action, also brought by the Plaintiff, which
41
Id. at ¶¶ 200–17.
11
“involve[ed] the same universe of alleged facts underlying [] this action.” On
October 10, 2013, Plaintiff filed a Motion for Temporary Restraining Order to
prevent construction of the Connector Road, which I denied via Letter Opinion of
October 22, 2013.42
On January 16, 2015, the District Court granted the defendants’ motion to
dismiss and on January 28, I granted Plaintiff’s Motion to Lift Stay of Proceedings.
On April 2, 2015, the City/UD Defendants filed a Motion for Summary
Judgment. On April 6, 2015, the DNREC Defendants filed a Motion to Dismiss.
The parties submitted briefing on both Motions in June and July. I heard oral
argument on September 4, 2015. This is my Memorandum Opinion.
III. STANDARD OF REVIEW
The Defendants filed two dispositive motions in response to the Plaintiff’s
claims. The City/UD Defendants filed a Motion for Summary Judgment on Counts
I, II, IV, VI, and VII. The DNREC Defendants filed a Motion to Dismiss Counts I,
III, V, VI, and VII under Court of Chancery Rule 12(b)(6), for “failure to state a
claim upon which relief can be granted.” However, the DNREC Defendants’
opening brief and the Plaintiff’s answering brief cited evidence that was not included
in the Plaintiff’s Complaint. Moreover, the City/UD Defendants moved for
summary judgment on many of the same counts. All of the parties, including the
42
Lechliter v. DNREC, 2013 WL 5718888 (Del. Ch. Oct. 22, 2013).
12
Plaintiff, have been given ample opportunity to supplement the record and I find that
none of the parties would be prejudiced by an application of the standard applicable
to a motion for summary judgment. In light of the foregoing, I convert the DNREC
Defendants’ Motion to Dismiss to a Motion for Summary Judgment,43 thus applying
the applicable standard to all of the Plaintiff’s Counts, as set forth below.
Summary Judgment should be granted where, considering the facts in the light
most positive to the non-moving party, the moving party has established that “there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.44
IV. ANALYSIS
The Plaintiff’s Complaint asserts a slew of claims against the Defendants,
both individually and as a part of a conspiracy. Col. Lecliter is an intelligent man,
articulate in written and oral communication. He is not legally trained, however,
and has taken the opportunity here to complain of the actions of the Defendants in
ways that sometimes approach the border between creative and frivolous. As a
result, my analysis below is necessarily45 an inelegant dog’s breakfast, the episodic
treatment of claims in which will no doubt try the reader’s patience. Because of the
43
See In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168–69 (Del. 2006).
44
Ct. Ch. R. 56(c).
45
Necessarily, that is, given not only the nature of the action, but also this judge’s limitations as a
writer.
13
idiosyncratic organization and presentation of the Complaint, I have found it difficult
to determine precisely what causes of action the Plaintiff asserts. I limit my analysis
here to those claims that have been clarified in the briefing or at oral argument; all
remaining allegations not briefed or otherwise explained are considered waived.46
A. Claims Against DNREC for Granting the Original Easement
In Count I, the Plaintiff alleges that the Original Easement granted in 2002
represents “a misuse of taxpayer dollars,” and argues that the use prescribed therein
did not conform to any of the purposes enumerated in the Delaware Land
Preservation Act (the “DLP Act”) for which DNREC can acquire real property.47
Additionally, the Plaintiff points to 29 Del. C. § 9403 and argues that DNREC lacked
the power to grant the Original Easement because the Director of the Office of
Management and Budget has been given the sole authority to grant easements.48 In
46
See In re Crimson Exploration Inc. S’holder Litig., 2014 WL 5449419, at *26 (Del. Ch. Oct. 24,
2014) (waiving the plaintiffs’ claim where they “did not mention [the claim] in their Opposition Brief
or at the Argument”) (citing Emerald Partners v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr.
28, 2003) (“It is settled Delaware law that a party waives an argument by not including it in his brief.”)).
47
Specifically, 7 Del. C. § 7503(a) provides the following:
State agencies may acquire any interest in real property for the following
purposes . . . : (1) To protect and conserve all forms of natural and cultural
resources; (2) To protect and conserve the biological diversity of plants and
animals and their habitat; (3) To protect existing or planned parks, forests, wildlife
areas, nature preserves or other recreation, conservation or cultural sites by
controlling the use of contiguous or nearby lands; (4) To preserve sites of special
natural, cultural or geological interest; (5) To connect existing open spaces into a
cohesive system of greenways and resource areas; (6) To provide for public
outdoor recreation; and (7) To allow for water resource conservation.
48
29 Del. C. § 9403 states: “For purposes of this chapter the granting of an easement shall not be
considered a conveyance of real property. The determination to grant an easement shall be at the
discretion of the Director of the Office of Management and Budget” (emphasis added).
14
response, DNREC argues that all claims concerning the Original Easement should
be time-barred under the doctrine of laches.
The doctrine of laches supports denial of a plaintiff’s request for equitable
relief when the plaintiff has unreasonably delayed in seeking that relief, and such
delay has prejudiced the defendant.49 DNREC asserts that the Plaintiff’s allegations
regarding the Original Easement are time-barred because the Plaintiff’s Complaint
was filed after the analogous three-year statute of limitation for actions “based on a
statute,” as provided in 10 Del. C. § 8106(a). Although the statute of limitation does
not strictly bind a court in equity in a laches analysis, the statute will ordinarily bar
a claim unless the plaintiff can show the existence of “unusual conditions or
extraordinary circumstances.”50 Here, the Plaintiff contends unusual facts and
circumstances exist that justify the tolling of his claims, because he was unaware of
the Original Easement in 2002, because the 2002 deed “makes no mention of any
easements,” and because there is “no evidence that these easements were referred to
the OS Council for advice and consultation.”51 Ultimately, the Plaintiff urges me to
find that his claims are not barred because he filed his Complaint “well within [two]
years of discovering [the Original Easement] through a FOIA request.”52
49
See Reid v. Spazio, 970 A.2d 176, 182 (Del. 2009); Martin v. Med-Dev Corp, 2015 WL 6472597,
at *15 (Del. Ch. Oct. 27, 2015) (citing U.S. Cellular Inv. Co. v. Bell Atlantic Mobile Sys., Inc., 677
A.2d 497, 502 (Del. 1996)).
50
See Reid, 970 A.2d at 184 (citing Wright v. Scotton, 121 A. 69, 72–73 (Del. 1923)).
51
Pl.’s Answering Br. 64–65.
52
Id. at 65.
15
The Plaintiff’s argument is not persuasive, however. The Original Easement
provided that the University could continue using the Encumbered Land for the
disposal of dredge spoils, which the Complaint itself avers that the University did
for seven years before the Plaintiff filed his Complaint. It is clear that there was no
attempt to conceal the fact or effect of the University’s retention of the Original
Easement.
The Plaintiff has failed to allege any additional facts to establish unusual or
extraordinary circumstances that would justify tolling his claims beyond the
statutory time limitations, and his claims are therefore barred by laches. As a result,
I grant summary judgment in favor of the Defendants for the claims in Count I that
allege violations of statutes arising from the grant of the Original Easement. Because
of this decision, I need not reach the Defendants’ argument that the Plaintiff lacks
standing to proceed on this claim. However, I note that even if this claim was not
time-barred, the Original Easement was a part of the purchase transaction itself, and
thus did not involve the disposition of public lands, or the granting of an easement
thereon; accordingly, the Plaintiff’s claims are without merit.53
53
The Plaintiff supposes, erroneously in my view, the existence of a brief moment in time, between
the purchase of the Lewes Property and the grant of the Original Easement, where the Encumbered
Land became protected under the DLP Act. Therefore, the Plaintiff alleges that the grant of the
Original Easement converted the permanently protected status of the parcel, in violation of the
DLP Act. However, the Original Easement was contemplated to be included as consideration for
the purchase of the Lewes Property, and the transfer of the Lewes Property to, and the grant of the
easement from, DNREC were virtually simultaneous. Consequently, I deem the purchase and
grant a single, simultaneous transaction. The Encumbered Land was never subject to the strictures
16
B. Claims Against DNREC Concerning the DNREC-MOU and the Amended
Easement54
In Count I of the Complaint, the Plaintiff alleges that DNREC acted ultra vires
when it approved the DNREC-MOU in October 2009 and also when it amended the
Original Easement in February 2010. The Plaintiff argues that in each instance
DNREC violated numerous statutes because it failed to take mandated prerequisite
action before entering these agreements.
The DNREC Defendants argue that the Plaintiff’s claims based on alleged
statutory violations should be rejected because the Plaintiff lacks standing to bring
his claims. A private individual has a right of action under a statute, in general, only
where the statute so provides.55 An exception exists where a plaintiff has suffered
an injury-in-fact as a result of the statutory violation, and the interest damaged is
within the “zone of interest” addressed by the statute; in other words, where the
plaintiff has suffered a concrete injury of the type the statute was intended to prevent.
The Plaintiff does not point to any statute itself to confer a private right of action to
seek review of the alleged violations; instead, the Plaintiff argues that he has
standing because DNREC’s statutory violations caused him to suffer an injury. In
of the DLP Act, and was therefore not subject to the provisions that the Plaintiff argues DNREC
violated here.
54
In this section, I consider only the claims against DNREC, individually. The Plaintiff’s related
conspiracy claims are analyzed together and discussed elsewhere.
55
See Oceanport Indus. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994) (“[N]o
party has a right to appeal unless the statute governing the matter has conferred the right to do
so.”).
17
addition, the Plaintiff argues that he has taxpayer standing to challenge the grant of
the easements.56 I analyze each of the Plaintiff’s standing arguments in turn and find
that the Plaintiff lacks individual standing, but that the Plaintiff has taxpayer
standing to bring claims concerning the Amended Easement.
1. Individual Standing
This Court applies the “concept of standing as a matter of self-restraint to avoid
the rendering of advisory opinions at the behest of parties who are mere
intermeddlers.”57 The plaintiff bears the ultimate burden of establishing standing to
bring a claim.58 Where, as is the case here, the plaintiff has not alleged that a statute
expressly provides standing, the plaintiff may establish standing by meeting a two-
part test. First, the plaintiff must demonstrate the he has suffered an “injury-in-fact”;
second, the plaintiff must demonstrate that the interest he seeks to protect is within
the zone of interest to be protected by the statute in question. 59 The Delaware
Supreme Court has held that this test entails the following inquiry:
(1) [T]he plaintiff must have suffered an injury in fact-an invasion of a
legally protected interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) there must
be a causal connection between the injury and the conduct complained
of—the injury has to be fairly traceable to the challenged action of the
56
Pl.’s Answering Br. 34–40.
57
Dover Historical Soc. v. City of Dover Planning Com’n, 838 A.2d 1103, 1111 (Del. 2003)
(quotation omitted). Federal courts apply a similar requirement due to their jurisdictional limits
under Article III of the United States Constitution.
58
Id. at 1109.
59
O’Neill v. Town of Middletown, 2006 WL 205071, at *28 (Del. Ch. Jan. 18, 2006) (citing Dover
Historical Soc., 838 A.2d at 1110).
18
defendant and not the result of the independent action of some third
party not before the court; and (3) it must be likely, as opposed to
merely speculative, that the injury will be redressed by a favorable
decision.60
Finally, in order to establish standing, the plaintiff’s “interest in the controversy must
be distinguishable from the interest shared by other members of a class or the public
in general.”61
In Count I of the Complaint, the Plaintiff does not allege a particular injury,
but instead relies solely on the contention that the alleged statutory violations have
caused him “tort damages.”62 In the Plaintiff’s answering brief, he argues that he
has sufficiently plead an injury to establish standing by pointing to the following
injuries:
“Turbine proximity, noise, proximity to the walkway on which he
regularly walks, loss of property and aesthetic value, and UD’s denial
of [the Plaintiff’s] access to land purchased for permanent preservation
as Open Space.”63
The Plaintiff also alleges that he has suffered adverse “health effects.”64 For the
purpose of assessing standing in Count I, I will assume that these alleged injuries are
those alleged as “tort damages” in his Complaint. I note that the aesthetic and access
damages are shared with the public at large, and cannot support an injury-in-fact,
60
Id. (citing Dover Historical Soc., 838 A.2d at 1110).
61
Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, at 1382 (Del. 1991) (citation omitted).
62
Compl. 56.
63
Pl.’s Answering Br. 40.
64
Id.19
but, since the Plaintiff has alleged in the record both personal injury and damage to
his property value as a result of the operation of the turbine, I will consider those the
injury alleged here.
The first statutory violation alleged by the Plaintiff is that DNREC violated the
DLP Act because it failed to consult with the OSC before approving the DNREC-
MOU and before granting the Amended Easement. The DLP Act, at 7 Del. C. §
7506(6), provides that the OSC shall “[a]dvise and consult regarding any change
from permanently protected status of open space lands acquired or otherwise
protected.” Plaintiff asserts that DNREC was required to consult the OSC here
because the DNREC-MOU and the Amended Easement changed the status of the
Encumbered Land from permanently protected status.65 The Plaintiff alleges that
DNREC’s failure to consult the OSC has caused him tort damages, presumably to
his health and property values.
Second, the Plaintiff argues that DNREC violated statutes concerning the
“Conservation Trust Funds” because DNREC failed to obtain an Act of the General
Assembly before signing the DNREC-MOU and granting the Amended Easement.66
65
7 Del. C. § 7506(6) provides that “[t]he Council shall . . . (6) [a]dvise and consult regarding any
change from permanently protected status of open space lands acquired or otherwise protected.”
The operation of the statute in circumstances closely related to those present here is discussed in
Lechliter, 2015 WL 7720277.
66
Additionally, the Plaintiff points to 30 Del. C. § 5423(c)(2), which requires that, “[i]f the General
Assembly approved the sale of any project or portion thereof, the State shall receive its pro rata
share of net sale income.” Therefore, Plaintiff argues that the section only “authorizes the sale . . .
of the protected, public trust Open Space, not the exchange for other land stipulated in the
20
The Plaintiff points to 30 Del. C. § 5423 which states, in part, the following:
It is intended that property acquired with funds from the Endowment
Account shall remain in public outdoor recreation and conservation use
in perpetuity. Said property may not be converted to other uses without
a subsequent act of the General Assembly.67
The Plaintiff alleges that DNREC was required to obtain an act of the General
Assembly pursuant to Section 5423 because the DNREC-MOU and the Amended
Easement converted the use of the Encumbered Land. Furthermore, the Plaintiff
argues that due to this statutory violation68 by DNREC, he has suffered “tort
damages,” presumably injury to his health and property values.
Finally, the Plaintiff argues that DNREC violated Delaware Code Chapter 94,
titled “Real Property Distributions,” because DNREC failed to follow the statutory
procedures that are required to declare property surplus. The Plaintiff points to three
provisions within that Chapter. First, the statute provides that the “Commission on
[DNREC-MOU] or the granting of an easement for the use of land bought with Project Account
funds.” Pl.’s Answering Br. 45.
67
30 Del. C. § 5423(c)(2) (emphasis added).
68
Because I find that the Plaintiff lacks standing, I need not reach DNREC’s assertion that it did
comply with Section 5423, pointing to the actions of the General Assembly in the 2011 and 2012
Bond Bills. The Plaintiff attacks the 2011 and 2012 Bond Bills on at least two grounds. First, the
Plaintiff asserts that 30 Del. C. § 5423(c)(2) requires an Act of the General Assembly before
converting the use of land and that the Bond Bills were approved after DNREC signed the
DNREC-MOU and granted the Amended Easement—an argument, I note, that is inconsistent with
the language of the statute itself, which requires a “subsequent” Act of the General Assembly. In
addition, the Plaintiff asserts that the 2011 and 2012 Bond Bill cannot satisfy the requirement of
Section 5423 because the General Assembly “circumvented the normal legislative process” by
inserting mere “epilogue language,” which cannot serve as an “Act of the General Assembly.”
Moreover, the Plaintiff argues that the Bond Bills failed to indicate that its authorization was to
remain effective beyond the fiscal year enacted.
21
State Surplus Real Property” is tasked with determining how to utilize land that has
been designated as surplus.69 This commission must review a proposed conveyance
of real property before it can be “sold, leased, transferred or otherwise conveyed.”70
Second, the statute states that “the granting of an easement shall not be considered a
conveyance of real property,” but provides that “[t]he determination to grant an
easement shall be at the discretion of the Director of the Office of Management and
Budget.”71 Finally, the statute contains a special requirement for parcels of land
designated as State parks and open space:
Notwithstanding any provision of this chapter to the contrary, no state
park, or any part thereof, open space as defined in § 7504 of Title 7 or
other area acquired primarily for recreational use, shall be rezoned,
neither shall there be a change in the use of any such lands requiring a
variance or subdivision approval, except upon 45 days prior notice to
all elected members of the General Assembly in whose district such
lands, or any part thereof, lie.72
The Plaintiff alleges that DNREC violated the statute because, before signing the
DNREC-MOU, it failed to (1) properly designate the Encumbered Land as surplus,
and (2) notify the members of the General Assembly in whose district the
Encumbered Land lies. Additionally, the Plaintiff alleges that DNREC improperly
granted the Amended Easement because it failed to seek the discretion of the
69
See 29 Del. C. § 9405.
70
See id. at § 9403.
71
See id. at § 9403.
72
Id. at § 9406.
22
Director of the Office of Management and Budget. The Plaintiff again argues that
he suffered “tort damages” as a result of these statutory violations.
The syllogism advanced by the Plaintiff, as I understand it, runs thus: the
Defendants failed to clear certain procedural hurdles required to lawfully build the
Turbine, and if the Turbine had not been built, it would not emit sounds or create the
flicker effect, and it is those emissions that have injured him. Thus, he has suffered
an injury-in-fact and has standing to litigate the violations of statute. This analysis,
however, is fatally flawed.
First, the injury complained of is not sufficiently related to the statutory
breaches to amount to an injury-in-fact for standing purposes. The Plaintiff has not
alleged, nor could he, that the Defendants could not have cleared the hurdles he
alleges they wrongfully refused to try. There is nothing in the record to show that
the failure of DNREC to consult with the OSC, for instance, which failure the
Plaintiff alleges violated the DLP Act, would have resulted in the OSC
recommending against the Turbine; or that DNREC would have followed such a
recommendation, which would have been purely precatory. Thus, the relationship
between any violation and the damage alleged is insufficiently concrete to afford
standing here.
More fundamentally, the Plaintiff’s injuries are not in the zone of interest
addressed by any of the statutes he cites. The DLP Act seeks to preserve open space
23
and protect the environment. The same is true of 30 Del. C. § 5423. Finally, 29 Del.
Code §§ 9401 et seq. is intended to protect the property interests of the State of
Delaware, as well as to preserve open space. The fact that violations of these statutes
led to construction of a windmill, emanations from which subsequently injured the
Plaintiff, is a mere fortuity; none of the statutes cited had the intent of preventing the
harm the Plaintiff has allegedly suffered, and his injuries, therefore, are outside the
zone of interests protected thereby. The Plaintiff, if he has suffered an injury, may
pursue his damages in tort, but lacks standing to vindicate the statutory violations of
which he complains.73
2. Taxpayer Standing
The Plaintiff argues that he has taxpayer standing to challenge the Original
Easement and Amended Easement. In Delaware, taxpayer standing is “reserved for
a narrow set of claims involving challenges either to expenditure of public funds or
use of public lands.”74 It provides a plaintiff–taxpayer standing regardless of any
73
I note that in Count I of the Complaint, the Plaintiff alleges that DNREC also violated portions
of the Coastal Zoning Act because it “never submitted plans for the Turbine to a pre-construction
Status Decision.” Compl. ¶ 236; 7 Del. C. §§ 7001–13. It is unclear to me whether the Plaintiff
has continued to support this claim in his answering brief or at oral argument. To the extent that
the Plaintiff has not waived this claim, he lacks standing for the same reasons stated above: he has
not sufficiently alleged a concrete injury-in-fact, nor does his alleged injury fall within the zone of
interest addressed by the Coastal Zoning Act. The Coastal Zoning Act was designed to protect the
State’s natural environment and not to prevent “tort damages” as alleged by the Plaintiff here.
74
Reeder v. Wagner, 974 A.2d 858, at *2 (Del. 2009) (citing O’neil, 2006 WL 4804652 at *20).
24
showing of special damages.75
Here, the Plaintiff argues that he has taxpayer standing because the grants of
the Original Easement and Amended Easement represent both a “misuse of taxpayer
dollars” and a “misuse of public land.”76 I have already concluded that the Plaintiff’s
claims concerning the Original Easement are barred by laches. To the extent the
Plaintiff alleges that the Amended Easement represents a misuse of public funds, his
argument is unavailing because DNREC did not expend any funds, of any kind,
when it agreed to amend the easement.
That leaves the Plaintiff’s claim that the Amended Easement is a misuse of
public land. The foundational case for taxpayer standing regarding publicly-owned
real property is City of Wilmington v. Lord.77 In Lord, a group of taxpayers
challenged the erection of a water tank on city-owned land that had been previously
designated to be used for public park purposes.78 The plaintiff–taxpayers argued
that the construction of a water tank was illegal because it did not conform to the
75
Danvir Corp. v. City of Wilmington, 2008 WL 4560903, at *3 (Del. Ch. Oct. 6, 2008) (citation
omitted).
76
DNREC argues that the Plaintiff failed to allege taxpayer standing in his Complaint. However,
I note that the Plaintiff broadly asserted in Count I of his Complaint that “Defendant DNREC and
UD-related defendants’ actions are a misuse of public land.” Compl. ¶ 240.
77
378 A.2d 365 (Del. 1977).
78
Specifically, the parcel of land had been donated to the city using a deed that included an express
condition that the land be used for public park purposes. Id. at 637. Furthermore, to receive the
land, the city acted pursuant to a statute that gave it the authority to acquire real property “for the
purpose of providing and maintaining one or more open places or parks.” Id. After being used for
many years as a golf course, the city proposed building a water tank on the land. Id.
25
land’s designated purpose and would thus violate the public trust; in response, the
city argued that the plaintiffs did not have standing to bring the claim. 79 To address
the issue of standing, the Court noted that a taxpayer has a “sufficient stake” in the
proper use of tax receipts to “allow him to challenge improper uses of tax funds.”80
Recognizing that the plaintiffs in that case had challenged, not the use of funds, but
the use of property, the Court extended taxpayer standing to encompass a challenge
to the use of real property:
The improper use of publicly held real property is sufficiently
analogous to the improper use of public money so that if a taxpayer has
a legal right to sue in the latter case, then necessarily a taxpayer should
have a similar right in the former case.81
Accordingly, the Court held that “where a property is held under an express trust for
public park purposes, a taxpayer has standing to sue to enjoin an alleged violation of
that trust.”82 In this case, the Plaintiff asserts that the Amended Easement permits
certain uses of the Encumbered Land that “fail to conform to the statutory covenants
for the use of protected, public trust open space listed in the DLP Act.”83 This
allegation is sufficient to obtain taxpayer standing under the standard articulated in
Lord. The Plaintiff alleges that a parcel of land is held in the public trust and has
been designated as open space, thereby limiting the use of the land. Furthermore,
79
Id.
80
Id.
81
Id. at 638 (citations omitted).
82
Id. at 640.
83
Pl.’s Answering Br. 34.
26
the Plaintiff argues that the Amended Easement allows the University to use the
parcel for uses other than those permitted by statute, namely, the building of the
Turbine. Therefore, I find that the Plaintiff has taxpayer standing to challenge the
Amended Easement, and address the substance of these allegations next.
3. The Amended Easement as a Misuse of Public Property
I have already described the statutory violations that the Plaintiff alleges to
establish his claim that the Amended Easement was a misuse of public property. In
sum, the Plaintiff argues that there are various statutes to which DNREC failed to
adhere in amending the Original Easement and creating the Amended Easement,
because that amendment resulted in a change of the status of the land from DLP Act-
protected open space.
DNREC contends, and I agree, that the Plaintiff’s challenge to the Amended
Easement must be dismissed because it is based on the “false premise” that the
Encumbered Land was once state-owned, permanently protected open space under
the DLP Act,84 unencumbered by the private rights embodied in the easement. The
Plaintiff argues that the entirety of the Lewes Property became protected open space
upon DNREC’s purchase, thus assuming that there was a moment in time, between
84
This analysis deals with the Plaintiff’s arguments that the Easements wrongfully converted
property purchased under the DLP Act from protected open space to the private use of the
University and its affiliates. It should not be confused with the Plaintiff’s allegations that the
Turbine violates the City’s zoning code because the Lewes Property is zoned “Open Space.” See
infra Section IV.C.
27
the purchase of the Lewes Property and the grant of the Original Easement, where
the Encumbered Land was subject to the restrictions on development in the DLP
Act. However, the Original Easement was explicitly included as consideration for
the purchase of the Lewes property; in fact, the grant and the purchase were virtually
simultaneous. Consequently, I deem the purchase and the grant a single,
simultaneous transaction. The Encumbered Land, therefore, was never DLP Act-
protected open space, unencumbered by a right of private usage in favor of the
University. The Encumbered Land was purchased from UD without the right to
exclude UD: it was, and remained, land subject to the deposition of dredge spoils by
the University. In light of this fact, DNREC’s subsequent amendment to the Original
Easement likewise could not have converted the Encumbered Land from public open
space to land subject to private use, since the Encumbered Land was reserved, in any
event, to the use of the University as a spoils ground.85
85
In addition, the Plaintiff alleges that the Amended Easement added acreage to the Original
Easement. Pl.’s Answering Br. 18. If the additional acreage was originally protected open space,
and if the record indicated that that acreage was now occupied by the Turbine, then the Plaintiff
might be able to show that DNREC illegally converted the additional acreage from protected open
space. However, the Plaintiff has failed to support this claim. According to the terms of the
Amended Easement, the only purpose of the amendment is to “clarify the ability of [UD] to utilize
the Area for its purposes”; the terms do no mention additional acreage. See Compl., Ex. 10
(Amended Easement). The Plaintiff’s only evidence for his contention that the Amended
Easement included additional land not subject to the Original Easment is an email that he received
in response to a FOIA request. That email was authored by the Manager of the Land Preservation
Office, a Division of Parks and Recreation. In it, the Manager states that the Amended Easement
increased the Encumbered Land by 1.4 acres. Id., Ex. 28 (Email). The Plaintiff, however does
not allege or point to record evidence that the Turbine is located outside the Original Easement,
and I note that the terms of the Amended Easement do not purport to extend the burdened area.
28
4. The University’s Violation of the Amended Easement
In Count I, the Plaintiff also alleges that the University violated the terms of the
Amended Easement by allowing First State, a “third-party, for-profit LLC” to sell
electricity generated by the Turbine.86 According to the Plaintiff, the Amended
Easement prohibits “commercial uses” and, otherwise, does not contemplate that
First State would operate the Turbine.87 In response, the Defendants contend that
the Plaintiff lacks standing to enforce the Amended Easement because the Plaintiff
was not a party to the agreement. The Plaintiff did not attempt to establish standing
to enforce the terms of the Amended Easement in his answering brief or at oral
argument and, therefore, the Plaintiff’s claim is waived.88
Based on the foregoing, I grant summary judgment in favor of the Defendants
for all of the Plaintiff’s claims in Count I.89
Therefore I conclude that the email, whatever its evidentiary value, does not create an evidentiary
issue for trial.
86
Pl.’s Answering Br. 16.
87
Id.
88
See In re Crimson Exploration Inc. S’holder Litig., 2014 WL 5449419, at *26 (Del. Ch. Oct. 24,
2014) (waiving the plaintiffs’ claim where they “did not mention [the claim] in their Opposition Brief
or at the Argument”) (citing Emerald Partners v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr.
28, 2003) (“It is settled Delaware law that a party waives an argument by not including it in his brief.”)).
89
I note that the Defendants argue that all of the Plaintiff’s allegations have been cured by
“legislative fiat” through the 2011 and 2012 Bond Bills. In response, the Plaintiff argues that the
bills merely contemplate the sale of the land and are, otherwise, silent as to the easements.
Additionally, the Plaintiff questions whether the bills’ authorizations, if any, extend beyond their
fiscal year. I need not consider the relevance of the Bond Bills to the facts here because I have
already dismissed the Plaintiff’s claims on other grounds.
29
C. Claims Against the City for Approving the City-MOA and Granting the
Building Permit
In Count II of his Complaint, the Plaintiff challenges the process by which the
City approved the construction of the Turbine, asserting claims against the City and
the UD Defendants.90 As a result of these process violations, the Plaintiff argues
that the City-MOA and Building Permit are “legal nullities.”91
The Plaintiff alleges that the City-MOA “effectively rezoned the
[Encumbered Land] from Open Space in the 2005 Comp Plan to University without
following proper procedures.”92 In other words, to the extent the City-MOA
indicates any zoning status other than “Open Space,” the City-MOA would have
effectively, but improperly, rezoned the Encumbered Land from “Open Space” to a
new status: “University.”93 To support this claim, the Plaintiff asserts that the
City-MOA incorrectly indicates that the Encumbered Land is zoned as “University,”
90
In this section, I consider only the claims against the City, individually. The Plaintiff’s related
conspiracy claims are analyzed together and discussed elsewhere.
91
Pl.’s Answering Br. 72. In addition, the Plaintiff alleges for the first time in his answering brief
that the City-MOA was breached. Id. at 24. According to the Plaintiff, the City-MOA “preclude[d]
any commercial activity without prior written consent of the City.” Id. However, the Plaintiff
argues that First State—a for-profit entity—was allowed to conduct “commercial activity” without
obtaining consent in accordance with the MOA. Id. To the extent this is an attempt to state a
claim, raised for the first time in a brief in opposition to Motions to Dismiss and for Summary
Judgment, it is untimely, and I have not considered it here.
92
Id. at 8. This argument regarding the zoning of the Lewes Property as “Open Space” should
not be confused with Plaintiff’s argument that certain restrictions applied to the Encumbered Land
because it was acquired as protected open space under the DLP Act, addressed above.
93
See id. 9. The Plaintiff refers to an email from then-Mayor Ford in which Ford stated that if any
land ownership was transferred, the zoning of the land would change from “Open Space” to
“University.” See Comp., Ex. 61 (Email), at 366.
30
and therefore, per the Plaintiff, the City-MOA improperly effects a “rezoning” of the
Encumbered Land.
I find the Plaintiff’s rationale hard to follow. As the Defendants point out, the
City-MOA contains a simple inaccuracy: the City-MOA mistakenly indicates that
the Encumbered Land was zoned “University” when it was actually zoned as “Open
Space.” The Plaintiff has failed to show how this inaccuracy caused the Plaintiff an
injury or is otherwise actionable.
The Plaintiff also challenges the issuance of the Building Permit for the
Turbine by the City. First, he argues that if the City-MOA did not effectively rezone
the Encumbered Land, the University would have had to request that the parcel be
rezoned before receiving a Building Permit for the Turbine, which it failed to do.94
Second, the Plaintiff asserts that the Building Permit was improperly issued because
the fee assessed in conjunction with the permit was “greatly reduced.”95 According
to the Plaintiff, the Building Permit application improperly excluded the costs of the
Turbine itself and only accounted for the construction costs of the tower on which it
is located, thus significantly, and improperly, reducing the Building Permit fee.96
94
Pl.’s Answering Br. 70.
95
Id. at 9. The Plaintiff also appears to challenge the height variance that was allegedly granted
in order to obtain the building permit. The Plaintiff has failed to specifically articulate a claim
regarding the City’s decision to exempt the Turbine from any height restrictions, other than to
allege that documentation of the City’s decision was not provided to him in any City FOIA
responses. See id. at 24.
96
See id. at 26–27. Plaintiff alleges the excluded costs of the Turbine were approximately
$3,000,000. See id.
31
Finally, the Plaintiff alleges that the Building Permit application inaccurately stated
that UD owned the property.97
The Plaintiff’s challenge to the issuance of the Building Permit is fatally
untimely. The City Building Code provides that an appeal may be taken to the Board
of Building Code Appeals “by any person aggrieved by a decision of the Building
Official” within 20 days.98 In response, the Plaintiff argues that appealing to the
Board of Building Code Appeals would have been “futile,” but fails to indicate why
this is so. The permit was exercised and the Turbine was constructed over two years
before the Plaintiff filed his Complaint. Having eschewed his right under the Code
to seek redress, the Plaintiff is barred by laches from litigating the matter here.
D. FOIA Claims Against DNREC and the City
The Plaintiff alleges in Counts III and IV that both DNREC and the City
violated the Delaware FOIA.99 In Count III, the Plaintiff alleges that DNREC
violated the Open Meeting provisions of the Delaware FOIA because (1) DNREC
did not publish an agenda for the public meeting of the OSC on June 6, 2012; (2)
DNREC employees discussed an unauthorized topic during an executive session at
that OSC meeting; and (3) DNREC published an agenda for the public meeting of
97
Id. at 27–28.
98
70 Lewes Code § 70-60.
99
29 Del. C. §§ 10001–07.
32
the OSC on September 16, 2012 that did not meet the specificity requirements.100
DNREC argues that this FOIA claim should be dismissed because DNREC is not
the proper party for the Plaintiff’s claim. According to DNREC, the OSC is a
separate entity, created by statute, and DNREC merely supports the OSC. Moreover,
DNREC argues that it has no authority over the OSC, which, DNREC argues, is the
proper subject of the Plaintiff’s FOIA claims. The Plaintiff did not respond to
DNREC’s argument in his answering brief and, as a result, the Plaintiff has waived
the FOIA claim in Count III. Therefore, I grant summary judgment in favor of the
Defendants as to Count III.
In Count IV, the Plaintiff alleges that “City Council has flagrantly and
consistently violated provisions of the FOIA.”101 The Plaintiff’s only support for
this allegation is to incorporate by reference “all allegations set forth” in his
Complaint.102 The Defendants argue that the Plaintiff’s allegations are “conclusory
allegations that may be ignored on a motion for summary judgment.”103 Moreover,
the Defendants assert that any FOIA violations related to the Turbine are time-
barred, alluding to the untimely allegations asserted in Count II. In Count II, the
Plaintiff asserts various allegations against the City regarding the January 2010 City
100
Compl. ¶ 270.
101
Id. at ¶ 272.
102
Id. at ¶ 271.
103
Defs. City/UD’s Opening Br. 14.
33
Council meeting. The Plaintiff alleges that the agenda published for the January
2010 public meeting failed to give the public proper notice that City Council was
going to vote on its approval of the City-MOA.104 According to the Plaintiff, the
agenda merely disclosed that the City-MOA was going to be “discussed” and
“considered.”105 In addition, the Plaintiff challenges the executive session that was
held during that City Council meeting. According to the Plaintiff, the City-MOA
was discussed during the executive session despite the fact that neither the agenda
nor the minutes of the meeting included the City-MOA as a topic.106 According to
the Plaintiff, the City’s failure to properly notify its citizens that it intended to vote
on approving the City-MOA was a violation of his procedural due process rights.107
The City argues, and I agree, that these allegations are more accurately characterized
as violations of the open meetings provision of the FOIA.108 The FOIA includes
express time limitations, which state, in part, the following:
Any citizen may challenge the validity . . . of any action of a public
body by filing suit within 60 days of the citizen’s learning of such action
but in no event later than 6 months after the date of the action.109
The Plaintiff filed his complaint on October 11, 2012, well beyond the FOIA’s six-
month statute of repose. Therefore, I find that the Plaintiff’s failure to contest the
104
Pl.’s Answering Br. 21.
105
Id. at 21.
106
Id. at 22.
107
Id. at 70.
108
See 29 Del. C. § 10004.
109
Id. at § 10005(a).
34
alleged FOIA infractions within six months amounts to laches, by analogy to the
statute of repose, and grant summary judgment in favor of the Defendants for the
FOIA claims embedded in Count II.
In the Plaintiff’s answering brief, he concedes that most of the FOIA claims
alleged against the City are time-barred; however, the Plaintiff argues that he has
properly alleged “FOIA claims that fall with[in] the six-month statutory period for
filing a complaint,” citing paragraphs 220 through 232 of his Complaint. 110 These
paragraphs were not originally cited in Count IV of the Complaint, however. After
reviewing the paragraphs identified in the Plaintiff’s answering brief, it appears that
he alleges FOIA violations resulting from various City meetings between June and
September 2012.111 However, the topics in the meetings were wholly unrelated to
the Turbine,112 and the Plaintiff has not sought relief for allegations related to these
meetings, beyond a blanket request that I enter a declaratory judgment that the
meetings were “illegal.” But invoking the Declaratory Judgment Act,113 without an
actual controversy, does not confer jurisdiction on this Court.114 An actual
controversy involves redress of a disputed right on the part of the complainant, where
the dispute is actual, ripe, and adverse between the parties.115 As such, the Plaintiff
110
Pl.’s Answering Br. 77.
111
Compl. ¶ 220–32.
112
Id. at ¶ 222.
113
See 10 Del. C. §§ 6501–13.
114
E.g., Rollins Int’l, Inc. v. Int’l Hydronics Corp., 303 A.2d 660, 662–63 (Del. 1973).
115
Id.35
has failed to state a claim with respect to violations of FOIA involving the 2012
meetings.
E. Claims Against DNREC for Allowing Certain Persons to Hunt the
Property
In Count V, the Plaintiff accuses DNREC of “allow[ing] selected individuals
to hunt illegally on State-owned Open Space Park land.” The Plaintiff concedes that
DNREC has the authority to regulate hunting in State parks,116 but argues that “the
gravamen of this claim is that DNREC allowed only select individuals to hunt in this
area.”117 According to the Plaintiff, “[i]f hunting is to be allowed in this area, all
citizens should have the same rights.”118 However, the Plaintiff does not allege that
he has sought and been denied a right to hunt these lands; he is a mere intermeddler
who seeks a declaration without a corresponding interest or injury. He is without
standing; therefore, I grant summary judgment in favor of the Defendants in Count
V.119
116
Pl.’s Answering Br. 56. Both the Plaintiff and DNREC cite 7 Del. C. § 4701(d), which provides:
All state parks and other areas acquired primarily for recreational use shall, from
the date of their establishment as such, come under the jurisdiction of the
Department of Natural Resources and Environmental Control and shall be closed
to hunting, except in areas designated by the Department of Natural Resources and
Environmental Control for such purpose.
117
Pl.’s Answering Br. 57 (emphasis added).
118
Id. at 57.
119
The Plaintiff alleges for the first time in his answering brief that this supposed illegal hunting
occurs in close proximity to his residence and in an area through which he regularly walks, thus
creating a hazard and a nuisance. Id. at 57. However, as the Plaintiff did not raise this allegation
in his Complaint and points to no record evidence in support, I do not consider these allegations
here.
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F. Tort Claims Against All Defendants
In Counts VI and VII, the Plaintiff alleges eight tort claims: (1) private
nuisance,120 (2) negligent infliction of emotional distress, (3) public nuisance, (4)
negligence per se, (5) negligence, (6) fraudulent misrepresentation, (7) negligent
misrepresentation, and (8) civil conspiracy. The Plaintiff brings each tort claim
against all of the Defendants “under the concert of action and civil conspiracy
doctrines.” I address each tort claim below.
1. Private Nuisance and Public Nuisance
A private nuisance is “a nontrespassory invasion of another's interest in the
private use and enjoyment of land.”121 “[A]ll those who participate in creating the
nuisance may be liable to third parties who suffer as a result.”122
The Plaintiff alleges that the Turbine—one-half mile distant from his
property—produces “disturbing noises, flashing red light, strobe/shadow effect and
unreasonable interference with [his] use and enjoyment of his property, including
sleep deprivation.”123 The Defendants argue that they could not have unreasonably
120
The Plaintiff alleges that the effects of the Turbine have caused both a “private nuisance” and
a “continuing private nuisance.” The allegations largely overlap and there is no legal distinction
between the Plaintiff’s causes of action. Therefore, I will consider both sets of allegations under
the private nuisance tort.
121
Restatement (Second) of Torts § 821D (1979). See also Bechrich Holdings, LLC v. Bishop,
2005 WL 1413305, at *9 (Del. Ch. June 9, 2005) (citing Cunningham v. Wilmington Ice Mfg. Co.,
121 A. 654, 654 (Del. Super. 1923) (defining tort of private nuisance).
122
Leitstein v. Hirt, 2006 WL 2986999, at *2 (Del. Ch. Oct. 12, 2006) (citing Keeley v. Manor
Park Apartments, 99 A.2d 248, 250 (Del. Ch. 1953)).
123
Compl. ¶ 278.
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interfered with the Plaintiff’s use and enjoyment of his property, pointing to
affidavits filed in this matter, which embody studies that show that the Turbine
“complies with the [S]tate’s noise regulations;124 that it complies with the City’s
noise and other zoning requirements;125 and, that any ‘flicker’ is limited.”126 The
Plaintiff personally expresses disagreement with these studies,127 but points to no
evidence that he has been harmed by the Defendants’ unreasonable acts. During oral
argument, the Plaintiff argued that it was subliminal long-waive-length sounds and
the pernicious effects on health of the limited flicker effect that have caused him
physical harm and diminished his property value. These are claims that will require
expert testimony to validate.128 Since the Defendants have submitted affidavits
124
The University commissioned a noise study in late 2010 that concluded that even when the
Turbine is moving at its maximum speed, it complies with Delaware Noise Regulations. Defs.
City/UD’s Opening Br. 16; Aff. of Allison McCowan, Exs. C (Acoustic Study) and D (Sound
Compliance Study).
125
The City submitted the affidavit of the Building Official for the City, who stated that the Turbine
does not violate the City’s noise ordinance. Aff. of Allison McCowan, Ex. A (Aff. of Henry
Baynum), at ¶ 8.
126
The University hired SED to perform a “Shadow Flicker Analysis.” SED concluded that the
Turbine would not have any adverse shadow flicker impacts to the surrounding area. Id. at Ex. B
(Shadow Flicker Analysis).
127
Compl. ¶ 35; Oral Arg. Tr. 58–60 (Unofficial Transcript).
128
When the issue of causation requires consideration of scientific determinations that are not a
matter of common knowledge, the plaintiff has the burden to provide testimony of a competent
expert witness. See, e.g., Money v. Manville Corp. Asbestos Disease Comp. Tr. Fund, 596 A.2d
1372, 1377 (Del. 1991) (“The plaintiff has the burden of providing by competent evidence that
there was a reasonable probability of a causal connection between each defendant’s negligence
and the plaintiff’s injury . . . . When the issue of causation is presented in a context which is not a
matter of common knowledge, such a reasonable probability can only be proven by the testimony
of a competent expert witness.”) (internal citations omitted). Here, the Plaintiff’s nuisance claim
requires many scientific determinations, such as the level of subliminal sound, the frequency of a
flicker effect, and the effect of each on his health and property values, all of which are not a matter
of common knowledge and thus require testimony of an expert.
38
indicating that the Plaintiff has suffered no cognizable harm, Rule 56 requires the
Plaintiff to point to record evidence of his own showing an issue for trial, or his
claims must be dismissed.129 The Plaintiff can point to nothing in the evidence of
record to substantiate his allegations.
At oral argument, the Plaintiff maintained that he had not understood it was
necessary to provide evidence of harm at this stage of the litigation, but he
represented to the Court that he could provide expert testimony to support his
nuisance claim if given more time. I note that the Plaintiff is representing himself
pro se in this matter and has made allegations that, if true, could lead to relief. Given
these considerations, I find it equitable to give the Plaintiff the opportunity to submit
expert testimony to support his private nuisance claim. Therefore, I will reserve my
decision regarding the Plaintiff’s private nuisance claim for 60 days, within which
time the Plaintiff should submit affidavits and an expert report sufficient to sustain
a finding of nuisance. If the Plaintiff fails to submit additional evidence, I will revisit
the Defendants’ Motion for Summary Judgment as to the private nuisance claim.
The Plaintiff also alleges the Turbine has caused a public nuisance. A public
nuisance is a nuisance that “affects the rights to which every citizen is entitled.”130
129
See Ch. Ct. R. 56(e); see also Winshall v. Viacom Intern. Inc., 2012 WL 6200271, at *8 (Del.
Ch. Dec. 12, 2012).
130
Artesian Water Co. v. New Castle Cnty., 1983 WL 17986, at *22 (Del. Ch. Aug. 4, 1983). See
also Restatement (Second) of Torts § 821B(1) (1979) (“A public nuisance is an unreasonable
interference with a right common to the general public.”).
39
To have standing to bring a public nuisance claim, a private plaintiff must allege a
special harm—that is, a harm “of a kind different from that suffered by other
members of the public.”131
The Plaintiff’s public nuisance claim suffers the same shortcoming as does his
private nuisance claim: he has failed thus far to present any scientific evidence that
links his complaints of special injury—physical and property damage—to the
operation of the Turbine. Assuming he does so in the time I have allotted him, he
will have met the requirement of special injury. The infringement of a public right
he alleges is that the Turbine presents a safety hazard to the public using the
Connector Road, an allegation that awaits factual development. For the reasons
stated above, I reserve decision on the Defendants Motion for Summary Judgement
with respect to the public nuisance claim for 60 days, during which time the Plaintiff
may supplement the record with affidavits and an expert report.
2. Negligence Per Se
The Plaintiff alleges that the Defendants have damaged him, and are negligent
per se. To establish negligence per se, a plaintiff must first demonstrate that the
defendant committed a “violation of a Delaware statute enacted for the safety of
131
Artesian Water Co., 1983 WL 17986 at * 22. See also Restatement (Second) of Torts § 821C
(1979) (“In order to recover damages in an individual action for a public nuisance, one must have
suffered harm of a kind different from that suffered by other members of the public . . . .”).
40
others.”132 Second, the plaintiff must demonstrate that the defendant’s violation
proximately caused his injury.
Here, the Plaintiff alleges that the Defendants violated the City’s Comp Plan
and the DLP Act by constructing the Turbine at its present location.133 The Plaintiff
has not alleged that the DLP Act was “enacted for the safety of others,”—clearly, it
was not—and therefore fails to establish negligence per se. The Plaintiff’s
Complaint indicates that “[t]he City Code has Zoning regulations, the purpose of
which are promoting public health, safety, morals, and general welfare of the City
of Lewes”;134 but this is simply the general foundation upon which all statutes and
regulations exist—a set of zoning regulations do not amount to regulation enacted
expressly in aid of citizens’ safety. Finally, Plaintiff asserts that the UD Defendants
“violated the State’s Noise Statute and City’s Noise Ordinance.”135 Again, there is
no indication that these ordinances were enacted to protect the safety of the public.
Summary judgement is therefore entered on the claims of negligence per se.
3. Negligence
The Plaintiff alleges that the Defendants were negligent in locating the
Turbine. To establish negligence, a plaintiff must show that the defendant owed the
132
Duphily v. Delaware Electric Co-Op, Inc., 622 A.2d 821, 828 (Del. 1995) (citations omitted).
133
Pl.’s Answering Br. 81.
134
Compl. ¶ 136.
135
Pl.’s Answering Br. 81.
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plaintiff a duty; that the defendant breached that duty; and that the defendant’s
breach proximately caused an injury to the plaintiff.136
The Plaintiff alleges that “UD owed a duty to Lechliter to locate and operate
the Turbine with reasonable care because it knew, or should have known, the Turbine
would affect residents whose homes are in close proximity to it with nuisance noise,
flicker, and even vibration.”137 The Defendants argue that this duty equates to the
general duty of an adjacent landowner—which is already accounted for in the
Plaintiff’s private nuisance claim—and that the Plaintiff must cite a separate duty on
which to base his nuisance claim.138 The Defendants fail to cite a legal basis for this
assertion, however. I note that the Defendants have not asserted that the regulatory
process by which they obtained a permit for the Turbine precludes this claim, and I
do not consider that argument here.
The Plaintiff has alleged that UD owes the Plaintiff a duty of reasonable care
to locate the Turbine so as to not damage neighboring property, which duty it
breached, and that Plaintiff has suffered damages thereby. While the Defendants are
correct that the Plaintiff may not recover damages for the same injuries under
separate theories of nuisance and negligence, they are not entitled to summary
judgment on this record. However, I reserve decision on these claims for the same
136
See Culver v. Bennett, 588 A.2d 1094, 1096–97 (Del. 1991) (citations omitted).
137
Compl. ¶ 65.
138
Defs. City/UD’s Reply 15.
42
reason as with the nuisance claims—the Plaintiff must in 60 days supplement the
record to show injury, or face summary judgement.
Finally, in Count VII, the Plaintiff attempts to state another negligence claim:
he asserts that by locating the Connector Road too close to the Turbine, DNREC and
UD acted “with gross and wanton negligence” in creating “a public safety hazard for
citizens by approving UD’s realignment of the Connector Road.”139 The tort of
negligence cannot address a prospective public injury, and the defendant has failed
to point to (or even allege) any injury he has suffered due to the construction or
location of the road. I grant the Defendants’ Motion for Summary Judgment with
respect to Count VII.
4. Fraudulent Misrepresentation
The Plaintiff asserts numerous claims of fraudulent misrepresentation. In
order to establish a claim for fraudulent misrepresentation, a plaintiff must show: (1)
that the defendant made a false representation of a material fact to the plaintiff; (2)
that the defendant must have knowledge of the falsity of the representation, while
the plaintiff must be ignorant of the falsity; (3) that the misrepresentation was made
with the intent that the plaintiff would believe it to be true, act in reliance thereon,
and be deceived thereby; and (4) that the plaintiff actually did so believe, act, and
139
Compl. 68. The Connector Road was constructed after the Turbine was up and operating.
43
was deceived, as well as having been harmed thereby.140
The Plaintiff asserts that “UD never informed the public about any problems
associated with Turbines,” and, instead, presented the Turbine as “[g]reen [e]nergy,
the wave of the future, and completely benign.”141 In addition, the Plaintiff alleges
that UD “misrepresented the zoning for the parcel” on which the Turbine was
constructed—apparently an allegation relating to the indication in the City-MOA
that the property was zoned “University.”142 According to the Plaintiff, “[i]f the land
use of ‘Open Space’ in the Comp Plan had been applied to the parcel, the Turbine
never would have been built at this location without a public hearing.”143 Overall,
the Plaintiff alleges that he relied on UD’s misrepresentations of the zoning of the
Encumbered Land and, as a result, he failed to oppose the Turbine prior to
construction.144 Moreover, had the Plaintiff known about the “problems associated
with [t]urbines,” he would have “taken action to prevent UD from building its
Turbine.”145
The Plaintiff has not, and cannot, allege that he was harmed by the
misrepresentation of the Defendants, if any. His contention that he would have
140
See Brzoska v. Olson, 668 A.2d 1355, 1366 (Del. 1995) (citing Twin Coach Co. v. Chance
Vought Aircraft, Inc., 163 A.2d 278, 284 (Del. 1960) (citations omitted)).
141
Pl.’s Answering Br. 84 (quotations omitted).
142
Id. at 85.
143
Id. at 86.
144
Id. at 87.
145
Id.
44
“taken action” does not amount to an allegation that he could have blocked the
construction of the Turbine, and he cannot, therefore, demonstrate that he has been
harmed by any statements of UD. With respect to his claims that UD should have
provided him additional negative information about wind turbines in general, the
failure to inform without more is not actionable misrepresentation. In effect, the
misrepresentation claims are merely an attempt to repackage his stale FOIA and
process arguments. I grant the Defendants’ Motion for Summary Judgment as to the
Plaintiff’s claim for fraudulent misrepresentation.
5. Negligent Misrepresentation
In the Plaintiff’s Complaint, he asserts that he “meets the minimal
requirements for this tort claim.”146 The Defendants correctly point out that the
Plaintiff’s claim must fail because he does not allege that the Defendants owed a
“pecuniary duty” to provide accurate information to the Plaintiff—a necessary
element of negligent misrepresentation.147 Therefore, I grant the Motion for
Summary Judgment in favor of the Defendants on this claim.
6. Civil Conspiracy
The Plaintiff’s Complaint contains multiple allegations of conspiracy, all of
which I address in this section. To state a claim for civil conspiracy under Delaware
146
Compl. ¶ 307.
147
See Corp. Prop. Assocs. 14 Inc. v. CHR Holding Corp., 2008 WL 963048, at *8 (Del. Ch. Apr.
10, 2008).
45
law, a plaintiff must plead facts supporting “(1) the existence of a confederation or
combination of two or more persons; (2) that an unlawful act was done in furtherance
of the conspiracy; and (3) that the conspirators caused actual damage to the
plaintiff.”148 In Count I of the Complaint, the Plaintiff alleges that
Defendants DNREC, UD, Gamesa, Blue Hen, and First State conspired
to build the Turbine illegally on state-owned Open Space in violation
of the [DLP] Act at 7 Del. C. § 7501 et seq.; 29 Del. C., chapter 94,
“Real Property Disposition”; 30 Del. C. 5423(c)(2); and the Delaware
Coastal Zone Act and Regulations.149
Similarly, in Count II of the Complaint, the Plaintiff alleges the following:
The City and [UD Defendants] conspired to violate the City’s October
2005 Comp Plan and 22 Del. C. § 702(d), to misrepresent material facts
to the detriment of City taxpayers; to issue an illegal Building Permit;
[and] to defraud the City treasury of funds it is due by law.150
As the result of my decision above, none of the Plaintiff’s individual
allegations in Count I or II survive. Therefore, the Plaintiff’s related
conspiracy claims must fail because the Plaintiff has not alleged a surviving
148
Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1036 (Del. Ch. Nov. 22, 2006)
(citing Nicolet, Inc. v. Nutt, 525 A.2d 146, 149–50 (Del. 1987)).
149
Compl. 56. The Plaintiff simplified this claim in his answering brief by alleging that “UD
conspired with State and City officials to allow the construction of the Turbine in violation of the
[DLP] Act.” Pl.’s Answering Br. 92.
150
Compl. 58. The Plaintiff simplified this claim in his answering brief by alleging that “UD
conspired with State and City officials to allow the construction of the Turbine in violation of . . .
the City’s Comp. Plan . . . . The claim also applies to the City and UD’s handling of the Building
Permit.” Pl.’s Answering Br. 92.
46
substantive cause of action on which to base his claims.151
Finally, in Count IV of the Complaint, the Plaintiff asserts that his
“claim of fraud readily meets the requirement for an underlying wrong.” It is
unclear whether the Plaintiff alleges a fraud in relation to his allegations in
Counts I and II, or if he alleges a separate count for fraud. I have already
rejected the Plaintiff’s allegations in Counts I and II, and to the extent the
Plaintiff attempts to rely on a separate allegation of fraud, he has failed to state
a claim for fraud with particularity.152 Therefore, I grant summary judgment
in favor of the Defendants as to all of the Plaintiff’s conspiracy claims.
V. CONCLUSION
The Complaint pleads tort claims that will require expert testimony to
withstand summary judgment, barnacled with improperly alleged or stale process
claims. Based on the foregoing, I grant summary judgment in favor of the
Defendants on all of the Plaintiff’s claims, except for certain of the Plaintiff’s tort
claims alleged in Count VI, upon which I reserve decision pending the Plaintiff’s
submission of expert opinion. The Defendants should present an appropriate form
of order.
151
The Plaintiff concedes that “it is essential that there be an underlying wrongful act, such as a
tort or a statutory violation.” Id. (citing Empire Fin. Serv., Inc. v. Bank of New York (Delaware),
900 A.2d 92, 97 (Del. 2006)).
152
See Metro Commc’ns Corp. BVI v. Advanced Mobilecomm Techs. Inc., 854 A.2d 121, 144 (Del.
Ch. 2004) (citing Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983)) (noting that
Chancery Court Rule 9(b) requires that a claim of common law fraud be alleged with particularity).
47